The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.377 of 2016 ------ (Against the judgment dated 16.05.2016 passed by the learned Principal District Judge, Dhanbad in Title Appeal No.152 of 2006) 1. Laru Gopal Singh Son of late Braj Mohan Singh resident of village Telmocho, P.O. Ramnagargarh, P.S. Baghmara, District: Dhanbad. 2. Sandhya Devi, wife of Late Neel Mohan Singh 3. Upendra Kumar Singh 4. Kripa Shankar Singh 5. Kashi Biswanath Singh 6. Jogendra Singh All sons of late Neel Mohan Singh. 7. Lilabawati Kumari @ Lilamati Kumari, Daughter of Late Neel Mohan Singh, resident of village Telmocho, P.O and P.S. Mahuda, District: Dhanbad. 8. Sheo Charan Singh (Expunged) 9. Nav Gopal Singh Son of late Braj Mohan Singh, resident of Village Telmocho, P.O. Ramnagargarh, P.S. Baghmara, District: Dhanbad. .... .... …. Appellants/Appellants/ Defendants 1. Raj Kumar Singh, Son of late Rabi Prasad Singh. Versus 2. Ashok Kumar Singh (Expunged)- (deleted as per the order dated 12.01.2017) 3. Sandha Devi, wife of Sukhdeo Singh, resident of Indai Thana, P.O. Indai Thana, P.S. Chapra, District : Chapra, Bihar 4. Tilotma Devi (Died)- (deleted as per the order dated 12.01.2017) 5. Mahami Devi, wife of late Kumud Bihari Singh 6. Kanti Singh 7. Babi Devi 8. Rubi Devi 9. Nitu Devi 10. Situ Devi 1 S.A. No.377 of 2016 All sons and daughters of late Kumud Bihari Singh, resident of Telmocho, Ramnagargarh, P.O. Ramnagargarh, P.S. Mahuda, District : Dhanbad. 11. Binod Bihar Singh 12. Jagarnath Singh 13. Lalita Devi, wife of late Narayan Singh 14. Sabita Devi alias Satyabhama wife of Ashok Kumar Singh, sons and daughters of late Tilotama Devi, all resident of Telmocho, P.O. Ramnagargarh, P.S. Mahuda, District: Dhanbad. ....
Facts
.... …. /Respondents/ Respondents/ Plaintiffs 15. Sona Devi alias Swarnalata Devi, daughter of late Braj Mohan Singh, wife of late Katilal Singh, resident of Narayanpur, P.O. & P.S. Narayanpur, District: Dumka 16. Purni Devi alias Purnima Devi, daughter of late Braj Mohan Singh, wife of Mukteshwar Singh, resident of Jamuniatand, P.O. Mahuar, P.S. Harla, District: Bokaro. .... .... …. Proforma Respondents/ Appellant/ Defendants ------ For the Appellants For the Respondents
Legal Reasoning
of facts by this court in exercise of the power under Section 100 of the Code of Civil Procedure. 10 S.A. No.377 of 2016 25. In view of the discussions made above, this Court is of the considered view that there is absolutely no substantial question of law involved in this appeal. 26. Accordingly, this appeal, being without any merit, is dismissed. 27. Let the copies of this judgement sent to the courts concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 24th of September, 2024 AFR/ Saroj 11 S.A. No.377 of 2016
Arguments
: Mr. Jitendra Kr. Pasari, Advocate : Mr. Kalyan Banerjee, Advocate ------ P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of affirmance dated 16.05.2016 passed by the learned Principal District Judge, Dhanbad in Title Appeal No.152 of 2006, whereby and where under the learned first appellate court dismissed the appeal on contest. 2 S.A. No.377 of 2016 3. The brief fact of the case is that the respondents/plaintiffs filed Title (Partition) Suit No.75 of 1997, with a prayer for declaration of 1/3rd share of them of the suit property and for passing a preliminary decree for partition and the consequential reliefs. 4. The case of the plaintiffs in brief is that the petitioner Nos.1 and 2 are the registered constituent attorney of late Rabi Prasad Singh and Tilotma Devi who were respectively the son and daughter of the common ancestor of the plaintiffs and the defendants namely Braj Mohan Singh. Rabi Prasad Singh and Tilotma Devi were born through the first wife of Braj Mohan Singh. It is the further case of the plaintiffs that after the death of their mother namely Swarnalata Devi, Braj Mohan Singh married Mukta Lata Devi and the defendants were born out of the wedlock of Braj Mohan Singh with Mukta Lata Devi. The plaintiffs next pleaded that after the death of Braj Mohan Singh, the plaintiffs and the defendants inherited the properties mentioned in the schedule of the plaint. The plaintiffs demanded partition of the joint family properties but the defendants refused the same. Hence, the plaintiffs filed the suit. 5. The defendant Nos.1 to 3 in their written statement challenged the maintainability of the suit on various technical grounds. They pleaded that Rabi Prasad Singh and Tilotma Devi are the son and daughter of Braj Mohan Singh through his concubine whereas the defendants are the children from the legally married wife. They further pleaded that during the life time, their father Braj Mohan Singh transferred some land in the name of the plaintiffs for their maintenance. Hence, the plaintiffs have not inherited any property of Braj Mohan Singh. 3 S.A. No.377 of 2016 6. The defendant Nos.5 and 6 filed separate contesting written statement but they have more or less adopted pleadings of the defendant Nos.1 to 3 in their written statement. 7. On the basis of the rival pleadings of the parties, the learned trial court settled the following nine issues:- I. Whether the suit is maintainable in its present form? II. Whether the plaintiffs have cause of action for the present suit? III. Whether the suit is barred by principle of waiver, estoppels and acquiescence? IV. Whether Ravi Prasad Singh and Tilotma Devi are legal heirs of late Braj Mohan Singh? V. Whether the scheduled property is joint family property? VI. Whether the plaintiffs have 1/3rd share in the joint property? VII. Whether the plaintiffs are entitled for the relief claimed? VIII. Whether the plaintiffs are entitled for any other relief or reliefs? IX. Whether the plaintiffs are entitled for decree of permanent injunction? 8. In support of their case, the plaintiffs examined five witnesses and proved the documents which have been marked Ext.1 to 6 whereas from the side of the defendants, ten witnesses have been examined and the defendants also proved the documents which has been marked Ext.A to D/3. 9. The learned trial court first took up issue No.IV. After considering the evidence in the record, relying upon the oral evidence; as well as documentary evidence, which have been marked Ext.2, 3 and 4, the trial court considered that the plaintiffs and the defendants jointly got compensation in a land acquisition case and in that case, both the plaintiffs and the defendants were described as son and daughter of Braj Mohan Singh, the learned trial court basing upon the evidence available on the record arrived at the conclusion that 4 S.A. No.377 of 2016 Rabi Prasad Singh and Tilotma Devi are respectively the son and daughter of Braj Mohan Singh through his first wife and decided the issue No.IV accordingly. 10. The learned trial court next took up issue Nos.V and VI together and after the considering the evidence in the record, came to the conclusion that each of the plaintiffs and the defendants are entitled to 1/7th share of the suit properties and the suit schedule properties are joint family properties. 11. The learned trial court disposed off issue Nos.III and IX as not pressed. In respect of issue Nos.I and II next taken up together by the learned trial court, the learned trial court arrived at the conclusion that the suit is maintainable and there is cause of action for filing the suit by the plaintiffs. 12. The learned trial court thereafter took up issue No.VII and held that the plaintiffs are entitled for the reliefs claimed. The learned trial court lastly took up issue No.VIII and held that the plaintiffs are not entitled to any other reliefs and passed a preliminary decree for 1/7th share to each, Rabi Prasad Singh and Tilotma Devi. 13. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.152 of 2006 in the court of Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned Principal District Judge, Dhanbad vide judgment dated 16.05.2016. 14. The learned first appellate court made independent appreciation of the evidence in the record and first took up issue Nos.IV, V and VI together. The learned first appellate court considered that Ext.3 is the award of land acquisition reference case No.11/90-91 in which all the off-springs of Braj Mohan Singh including plaintiffs and the defendants jointly contested as 5 S.A. No.377 of 2016 applicants and compensation was awarded to the plaintiffs and the defendants of this suit in that land acquisition reference case. 15. The learned first appellate court also considered Ext.4 which is also the award passed in L.A. reference Case No.12/1991 in this respect. The learned first appellate court then considered both Sheo Charan Singh and Rabi Prasad Singh were examined as witnesses in the said land acquisition case and in the first appellate court, it was mentioned by the appellants/defendants that the suit property is a self-acquired property of Braj Mohan Singh. Thus, the suit properties were not acquired by Braj Mohan Singh as joint ancestral property and only after the death of Braj Mohan Singh, the properties were converted into joint family properties. The learned first appellate court also considered that it is an admitted case of the defendants that there has not been any partition between the parties. The first appellate court also considered the deposition of D.W.6 that Sheo Charan Singh has disposed of some land as Karta of the family. The learned trial court has allotted 1/7th share to each of the off-springs of Braj Mohan Singh. The share of Sheo Charan Singh- one of the son of Braj Mohan Singh who died issueless, has also been distributed between other off-springs of Braj Mohan Singh and did not find any illegality in the finding of the trial court and decided the issue in favour the plaintiffs. 16. The learned first appellate court next took up issue Nos.1 and 2 together and held that the suit is maintainable and there is cause of action for the suit. The learned first appellate court disposed of issue No.III as not pressed. The learned first appellate court lastly took up issue Nos.VII, VIII and IX and held that the off-springs of Braj Mohan Singh are entitled to their share in the joint family properties. The learned trial court rightly held that Rabi Prasad Singh 6 S.A. No.377 of 2016 and Tilotma Devi are entitled to 1/7th share of each from the suit properties and dismissed the appeal. 17. Learned counsel for the appellants submits that the suit is bad for having been filed by the power of attorney holder of Rabi Prasad Singh when the power of attorney was not filed before the trial court as is required under Order III Rule 6(2) of the Code of Civil Procedure. It is next submitted that as Rabi Prasad Singh and Tilotma Devi- the plaintiff No.3 are the off-spring of the concubine of Braj Mohan Singh. So, they are not entitled to inherit all the ancestral properties of Braj Mohan Singh. It is also next submitted that both the courts below have failed to consider that there is no unity of title and possession between the parties in respect of the suit property but still passed the decree of partition. 18. Learned counsel for the appellants relied upon the judgment of the Hon’ble Supreme Court of India in the case of Uttam vs. Saubhag Singh & Others reported in (2016) 4 SCC 68 wherein the Hon’ble Supreme Court of India has summarized the law in so far as it applies to joint family property governed by the Mitakshara School of Hindu Law prior to the amendment of 2005 Hindu Succession Act paragraph-18(iii) of which reads as under:- “18. Xxxxx(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.” And submits that if a male Hindu has died leaving behind a female relative specified in Class I of the Schedule of the Hindu Succession Act, 1956 or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property 7 S.A. No.377 of 2016 would devolve by testamentary or intestate succession, and not by survivorship. 19. It is next submitted by the learned counsel for the appellants that both the courts below failed to frame an issue as to ‘whether the mother of Rabi Prasad Singh and Tilotma Devi, is a concubine of Braj Mohan Singh or she was the first wife of Braj Mohan Singh’. It is also submitted by the learned counsel for the appellants that the suit for partition in respect of the property of Braj Mohan Singh is not maintainable. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and suit of the plaintiffs be decreed after formulating appropriate substantial questions of law. 20. Having heard the submissions made at the Bar and after going through the materials available in the record, so far as contention of the appellants regarding the plaintiff Nos.1 and 2 being power-of-attorney holder of Rabi Prasad Singh and that they have not filed the power-of-attorney in the trial court is concerned, it is pertinent to mention here that in the written statement, the defendants have not challenged the maintainability of the suit on the ground that they were filed by the power-or-attorney holder of Rabi Prasad Singh nor it has been mentioned anywhere in the written statement that the plaintiff Nos.1 and 2 have not filed the power-of-attorney executed by Rabi Prasad Singh; in their favour. 21. It is pertinent to mention here that Tilotma Devi herself filed the suit and it is also pertinent to mention here that the plaintiff No.2 namely Raj Kumar Singh has been described as the son of Rabi Prasad Singh. So, as Rabi Prasad Singh has died on 02.10.1998 as claimed by the learned counsel for the appellants, his son- Raj Kumar Singh became the plaintiff No.2 and he stepped into the shoes of his father. The other power-of-attorney holder namely Ashok 8 S.A. No.377 of 2016 Kumar Singh, after the death of Rabi Prasad Singh- who gave the power-of- attorney in his favour, has been deleted as plaintiff No.1 as is evident from the judgment of the trial court. Hence, there is no illegality in filing of the suit by the plaintiffs or by the time, the same came up for judgment. Nowhere, in the written statement, it has been pleaded that the original plaintiff Nos.1 and 2 never filed the power-of-attorney as is required under Order III Rule 6 (2) of the Code of Civil Procedure. So, the same being a question of fact cannot be raised for the first time in the second appeal. Hence, this court is of the considered view, that there is no merit in this contention of the appellant that original plaintiff Nos.1 and 2 being the power-of-attorney holder having been filed the suit, the same is bad in law. So far as the contention of the appellants that the concubine is not entitled to inheritance is concerned, it is pertinent to mention here that no concubine is party to this suit. As has categorically been mentioned in paragraph-11 of the impugned judgment, it is the consistent case of the defendants that the suit property is the self-acquired property of Braj Mohan Singh. So, even if Rabi Prasad Singh and Tilotma Devi are considered to be illegitimate son and daughter of Braj Mohan Singh, still they are entitled to inherit. Hence, there is no illegality committed by the courts below, in this score also. 22. So far as the contention of the appellants that both the courts below have failed to consider that there is no unity of title and possession between the plaintiffs and the defendants is concerned, the undisputed fact remains that the parties followed the Mitakshara School of Hindu Law. Once it is established that Rabi Prasad Singh and Tilotma Devi are the son and daughter of Braj Mohan Singh so, the presumption goes to show that the family property is joint. So, as there was no prior partition earlier between the defendants and the 9 S.A. No.377 of 2016 plaintiffs; therefore, there is no perversity in the findings of the courts below that there is unity of title and possession between the parties in respect of the suit property. Hence, and on this score also the contention of the appellants has no merit. 23. So far as the contention of the appellants regarding the judgment of the Hon’ble Supreme Court of India in the case of Uttam vs. Saubhag Singh & Others (supra) is concerned, the facts of this case is entirely different from the facts of that case. In that case, the widow of Jagarnath Singh held the property as tenants-in-common along with other coparceners. Here, there is no such case nor unlike that case, the plaintiffs in this case, are claiming through any female relative, surviving Braj Mohan Singh. Under such circumstances, this court has no hesitation in holding that, the ratio of Uttam vs. Saubhag Singh & Others (supra) is not applicable to the facts of the case. 24. So far as the contention of the appellants regarding the judgment passed by the Hon’ble Supreme Court of India in the case of Smriti Debbarma (Dead) through Legal Representative vs. Prabha Ranjan Debbarma & Others passed in Civil Appeal No.878 of 2009 dated 04.01.2023 is concerned, in paragraph-30 therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that the plaintiff has to prove its own case. The same is no doubt a settled principle of law and in this case, both the courts below have arrived at the concurrent finding of facts that the plaintiffs have succeeded in establishing their case and this Court do not find any perversity in such concurrent finding of facts. Hence, there is no scope for interference with such concurrent finding